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Coalition's first amicus brief tests Council exemption claim

Council withheld records of McMillan Park project.

UPDATE 6/18/16 - On June 9, 2016, the D.C. Court of Appeals decided the case for the appellant, reversing and remanding. The court's opinion echoed many of the arguments in the Coalition's amicus brief.

The D.C. Open Government Coalition filed its first amicus curiae brief April 27, asking the D.C. Court of Appeals to order release under the Freedom of Information act of D.C. Council records.

The brief filed in Vining v. Council of the District of Columbia, No. 14-CV-1322, supports Kirby Vining’s attempt to obtain records related to the pending development of McMillan Park. The Council disclosed some records, but withheld 149 other responsive records. When Vining appealed to the D.C. Superior Court, Judge Robert Okun held that the Speech or Debate statute in the D.C. Code can serve as an FOI Act exemption under which the Council can deny the public access.

“We had been looking for an opportunity to file an amicus brief in major FOIA case for some time,” said Kevin M. Goldberg, Coalition president. “While we didn’t have a particular case or issue in mind, this case just jumped out at us. The Superior Court decision is such an obvious misinterpretation of the District’s FOIA statute, both in terms of the law’s plain language and overall intent. If allowed to stand, it would create a gaping loophole that could be exploited by the Council whenever it wanted to evade scrutiny. In fact, ‘loophole’ might be too generous. I’d describe it as a 'FOIA black hole' from which records might never escape.”

The Council amended the FOI Act in 2000, intending that it apply to Council records as well as Executive Branch records. and that both branches be treated equally under the law. Yet, in 2013, the Council invoked the Speech or Debate statute for the first time in response to a FOIA request. It did so nine times in 2014. In this case, the Council claimed that 60 documents – 40 percent of the 149 documents withheld – were protected by the Speech or Debate statute, which reads: “For any speech or debate made in the course of their legislative duties, the members of the Council shall not be questioned in any other place.”

The amicus brief draws on the DCOGC’s experience and expertise on matters affecting transparency in general and the D.C. FOIA in particular to argue that the Speech or Debate statute cannot be used to deny a FOIA request because Council records are not “speech or debate” made in the course of legislative duties. As the brief notes at the outset, this statute was intended to protect individual Council members against being drawn into litigation “that hinders or delays the legislative process.” Modeled on a provision in the U.S. Constitution, the D.C. statute protects Council members and their legislative aides, not the Council as a whole. That is why it has never been understood to apply to FOIA requests, which seek records not of an individual legislator, but the body as a whole. The Speech or Debate law is not a “withholding statute” as contemplated by the D.C. FOIA, nor was it ever intended to be.

The Coalition hopes the Court of Appeals will recognize the vast harm to transparency that will ensue if Superior Court decision is affirmed. The Council would effectively be allowed to claim an exemption from the FOI Act that would swallow the law entirely, at least as it is applied to that branch of the District’s government. That interpretation cannot be reconciled with the Council’s decision in 2000 to expressly apply the District’s Freedom of Information Act to itself.